September 20, 2011
In Belgium, as in many other European countries, homosexual men are not allowed to donate blood. To be more precise, not homosexual men are permanently excluded from donating blood, but “men who have sex with men”. “What’s in a name?”, you might ask. That is what I intend to find out in this post.
Reasonable arguments are invoked on each side of the blood donation debate: a concern for public health on one side and a struggle against stereotyping and discrimination on the other. But who is in the right here? Who has the law, and more particularly European human rights law, on its side? In this post I will attempt to offer a possible answer to these questions through the lens of the case-law of the European Court of Human Rights. Obviously, the Court not having ruled on this issue, what follows is based on my interpretation of the Court’s discrimination case-law, combined with ideas on how a homosexual applicant may argue a hypothetical case in front of it.
Recently, the Belgian media reported on a case involving a radio presenter who admitted that he has repeatedly lied on the questionnaire that every blood donor needs to fill out prior to donation. He indicated on the questionnaire that he has not had sex with men, although he is homosexual and married to his partner. The radio presenter lied to make a point. He reported on Twitter that he finds the rule excluding homosexual men from donating blood “foolish and homophobe”. The Flandres Red Cross, the main responsible body for the organisation of blood donations in Flandres, reacted: “[he] is not being refused because he is gay, but because he has sex with a man. Gays who never had sex can give blood. And he should have not made his point by lying on the questionnaire.”
Men who have sex with men are permanently excluded from donating blood in Belgium. The applicable Law does not explicitly ban them from donating blood. Instead, it refers to a list of exclusionary criteria, to be found in its Annex. People on that list cannot donate blood. One of the permanent exclusionary criteria refers to sexual behaviour: “persons who, as a consequence of their sexual behaviour, have a great risk of contracting infectious diseases that are transmitted through the blood (author’s translation)”. A Royal Decree, regulating the organisation of blood donations, demands that each donor fill in and sign a medical questionnaire regarding his health conditions. A further Ministerial Decree recognises the organisations in charge of blood donations. These organisations are ultimately responsible for drawing up the questionnaire and thus also for the interpretation of the list of exclusionary reasons. In Flandres, the main responsible institution is the Flemish Red Cross. In its relevant information document the Flemish Red Cross explicitly asks “men who have sex with other men to not donate blood, whether they practice safe sex or not (author’s translation)” in order to guarantee maximum safety of the donated blood – there is a window period in which the tests that are conducted on each sample of donated blood are not able to detect whether it is HIV-infected (p. 5-6). In support of its position, the Flemish Red Cross cites statistical data: one in 100 Belgian homosexual men is infected with HIV, while one in 5000 heterosexual men is infected (p. 6). The information document goes on to state that the relevant statistics do not disclose an increased risk of infected blood in lesbians as compared to heterosexuals. This explains why their donations are welcome (p. 7).
A look at a possible ruling by the European Court of Human Rights
If we were to imagine our radio presenter litigating to obtain authorisation to donate blood, all the way up to the European Court of Human Rights, a first obstacle he would face is that the discrimination he complains of is not the result of a state action. Rather, it is a private organisation that bars him from donating blood. And private organisations are not bound by the ECHR. However, our radio presenter would first have to exhaust the domestic remedies. If the domestic courts find against him, citing the medical statistics to find that men who have sex with men are legitimately excluded from donating blood – and let us hypothetically presume they will do so in order to have our case reach Strasbourg – the radio presenter would have a claim under the European Convention on Human Rights. He could now claim as an applicant that the Belgian courts have failed to protect him from discrimination by a private actor by incorrectly balancing the interests involved.
Article 14 juncto article 8?
Having passed that hurdle, our applicant would then have to prove that his Convention rights have been interfered with. Now, it is doubtful that there exists a right to donate blood under the ECHR. However, our applicant would argue a discrimination case under article 14 ECHR, in conjunction with a substantive Convention right. It thus suffices that his claim fall within the ambit of a Convention right, which would in this case be article 8. It is my intuition, based on the extensive interpretation the Court gives to the concept private life, that the Court would accept his claim under art. 14 j. art. 8. Arguably, the fact that the applicant was forced to disclose his sexual identity on the medical questionnaire and that he would be barred from donating blood if he answered truthfully, thus interfering with his decisional privacy to determine the use of his own blood, could be considered sufficient to bring the facts of the case within the ambit of article 8.
Difference in treatment?
If it is accepted that the facts would fall within the ambit of article 8, it appears clear that, being in a similar situation, the applicant was treated differently from other people (heterosexuals) on the basis of his sexual orientation. Although the Red Cross did not exclude him on that basis explicitly, instead referring to men who have sex with men, I cannot imagine that the Court would dismiss the applicant’s claim on that account. I suspect that the Court would find the distinction homosexual – “man who has sex with another man” overly artificial and would at this stage do away with the argument that the difference in treatment is not based on sexual orientation. I believe the Court would especially reason this way because the exclusion is permanent and applies as soon as a homosexual man has sex with another man, even if it is only once in his lifetime. If no one ever had sex, there would hardly be any reason to exclude anyone from donating blood for risk of HIV transmission. But pretty soon, we would also have no one left to donate blood, nor to receive it!
The Court’s approach to the argument that lesbian women are not excluded from donating blood is more difficult to predict. I suspect that, seeing as it is so closely tied to the aim of protection of public health pursued by the permanent exclusion of homosexual men, the Court would deal with it under the proportionality analysis.
The biggest obstacle for the applicant would be that proportionality test. The Belgian government could argue that the difference in treatment was objectively and reasonably justified to protect public health. The government’s argument here appears quite strong. It could cite relevant statistical data to demonstrate that men who have sex with men are at increased risk of being HIV infected. It could moreover refer to the inclusion of lesbian women to demonstrate that discrimination of homosexual men was not the motivation behind the exclusion, but merely the result of the interpretation of the statistics.
At this stage, I suspect that the best strategy to follow for the applicant would be to refer to the existence of less restrictive alternatives to achieve the aim of protection of public health. Since it concerns a case of difference in treatment on the basis of sexual orientation, “the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances”. In that respect, the Court has in several cases been highly suspicious of blanket exclusions from the enjoyment of one’s rights. The applicant may therefore wish to refer to less restrictive alternatives that allow for more sensitivity to individual cases than the blunt instrument of a blanket ban. To counter such argumentation, the government may refer to the lack of a European consensus on the issue. The comparative study of an April 2011 review by the UK’s Advisory Committee on the Safety of Blood, Tissues and Organs, referring to a 2009 survey by the European Blood Alliance, shows that 12 out of the 15 examined European countries permanently ban men who have sex with men from donating blood, while the other three countries provide for a temporary ban (p. 33-34).
Since the cited review, the United Kingdom (one of the 12) has announced that it will replace its life time ban with a temporary one of 12 months. The applicant may make use of recent and ongoing changes, such as the shift in position in the United Kingdom, to argue that the European consensus is moving towards a temporary rather than a permanent ban, so that the consensus argument cannot decisively widen the principled narrow margin of appreciation left to Member States. The applicant may nevertheless face the problem that the Court has been reluctant to decisively narrow the margin of appreciation in other discrimination cases, such as those related to gay marriage and gay adoption. In those cases the Court held that the persistent lack of a European consensus, even if it was moving, justified leaving a wide margin of appreciation to the state in question. However, even in those situations the Court has emphasised that the State’s margin of appreciation goes hand in hand with European supervision. The applicant may wish to make use of this opening to, relying on scientific evidence, strengthen his claim that the less restrictive alternative of a temporary ban would be equally suitable and effective to achieve the legitimate aim and that therefore a blanket exclusion is disproportionate, regardless of the width of the margin of appreciation. In the absence of comprehensive data to this effect by the Belgian government, the applicant could rely on the review of the Advisory Committee on the Safety of Blood, Tissues and Organs of the United Kingdom to substantiate his claim. The review demonstrates that, in the United Kingdom, the estimated increased frequency of HIV infectious donations being released into the blood supply by moving from a permanent ban to a temporary ban of one year would be marginal (1 per 4.41 million donations versus 1 per 4.38 million donations; p. 48). Faced with such evidence, the burden of proof should then arguably fall on the Belgian government to demonstrate why a permanent ban would still be justified in Belgium. Failing the delivery of such proof, I suspect that the Court would hold that the blanket ban in Belgium is disproportionate and that it would find a violation of art. 14 j. art. 8.
Although an argumentation based on a less restrictive alternative is most likely to grant the highest chance of success at the ECtHR, due to the Court’s reluctance to outright reject the consensus argument in LGB discrimination cases, I am not convinced that it will lead to the outcome desired by our applicant. Even if the practice in Belgium would be changed to install a temporary ban of 12 months, it would still mean he cannot give blood if he had sex with his husband in the past year. In that respect (and from a policy perspective) a more desirable change in the practice would be to do away with the ban on men having sex with men altogether and focus on banning people who have (unsafe) sex with multiple partners. Alternatively, there should at least be an exception for homosexual men who are in a stable, monogamous relationship (cohabitation contract or marriage) when both partners can provide a certificate proving their HIV-negative status. The risk of the window period would then be as low (virtually nil) as it is for heterosexual couples in a similar situation.
Perhaps our applicant may actually – in order to achieve the most desired outcome in his individual case and in addition to the argumentation presented above – argue at the ECtHR that he is also being discriminated as a married homosexual. He may argue that he is being treated differently from heterosexual married persons without reasonable and objective justification, because the blanket ban does not allow for an individual assessment of his particular situation: one in which, since both he and his partner are presumably HIV-negative, he has as low a chance (virtually nil) of transmitting the HIV virus through blood donations as heterosexual married people. Since the blanket ban does not allow for such an individual assessment, the Court might hold that it is also disproportionate because it discriminates, on the basis of sexual orientation, between married homosexuals and married heterosexuals.
 Koninklijk Besluit van 20 June 2002 tot wijziging van de criteria bepaald in artikel 8 van de wet van 5 juli 1994 betreffende <bloed> en bloedderivaten van menselijke oorsprong.
 See, mutatis mutandis, ECtHR, Karner v. Austria, App. No. 40016/98, 24 July 2003; ECtHR, Kozak v. Poland, App. No. 13102/02, 2 March 2010; ECtHR, Schüth v. Germany, App. No. 1620/03, 23 September 2010; ECtHR, Siebenhaar v. Germany, App. No. 18136/02, 3 February 2011.
 Kozak v. Poland, supra note 2, para. 92.
 See for instance Kozak v. Poland, supra note 2, para. 93. See also ECtHR, Kiyutin v. Russia, App. No. 2700/10, 10 March 2011, para. 72 (request for referral to Grand Chamber currently under consideration); ECtHR, Hirst v. The United Kingdom (No. 2), 74025/01, 6 October 2005, para. 82; ECtHR, Alajos Kiss v. Hungary, App. No. 38832/06, 20 May 2010.
 See ECtHR, Alekseyev v. Russia, App. Nos. 4916/07, 25924/08 and 14599/09, 21 October 2010, para. 83.
 As far as I am aware, there are none available publicly.